Commissioner of Taxation v Swiss Aluminium Australia Ltd
[1986] FCA 199
•26 MAY 1986
Re: COMMISSIONER OF TAXATION
And: SWISS ALUMINIUM AUSTRALIA LIMITED; ALCOA OF AUSTRALIA LTD; ALUMINUM CO.
OF AMERICA; VICTORIA ALUMINIUM COMPANY; COMALCO LIMITED
Nos. G293 and G307 of 1985
Freedom of Information
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION
Bowen C.J.
Fox J.
Jackson J.
CATCHWORDS
Freedom of Information - information contained in a document concerning the affairs of another taxpayer - claim for exemption under s.38 - whether s.16 of Income Tax Assessment Act 1936 document.
Administrative Appeals Tribunal Act 1975, s.45.
Crimes Act 1914, s.70
Freedom of Information Act 1982, ss.3(1) (b), 11(a), 15, 38.
Income Tax Assessment Act 1936, s.16
Ombudsman Act 1979, s.35
HEARING
SYDNEY
#DATE 26:5:1986
ORDER
The answer to the following question of law arising in the the proceedings before the Administrative Appeals Tribunal which was referred under s.45 of the Administrative Tribunal Act 1975 is as stated below:
QUESTION:
Whether the document marked in the proceedings as D19 is an exempt document pursuant to the provisions of section 38 of the Freedom of Information Act 1982 on the ground that section 16 of the Income Tax Assessment Act 1936 is an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind.
ANSWER: "Yes".
Swiss Aluminium Australia Limited, Alcoa of Australia Limited, Aluminium Company of America, Victoria Aluminium Company and Comalco limited do pay to the Commossioner of Taxation his costs of the reference of the question of law.
JUDGE1
This is a Special Case dated 4 April 1986 submitted by the Administrative Appeals Tribunal in accordance with s.45 of the Administrative Appeals Tribunal Act 1975. It refers to this Court a question of law arising in proceedings before the Tribunal. The question referred is:
"Whether the document marked in the proceedings as D79 is an exempt document pursuant to the provisions of section 38 of the Freedom of Information Act 1982 on the ground that section 16 of the Income Tax Assessment Act 1936 is an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind."
The document marked in the proceedings as D79 is, amongst others, the subject of a request for access pursuant to s.15 of the Freedom of Information Act 1982 by the first respondent, Swiss Aluminium Australia Limited. The decision of the applicant, the Commissioner of Taxation, refusing access to the document is the subject of an application for review before the Administrative Appeals Tribunal.
Parts of document D79 consist of information respecting the affairs of a person or persons other than either Swiss Aluminium or the Commissioner or any of the Commissioner's officers. This information is information disclosed or obtained under the provisions of the Income Tax Assessment Act 1936.
On 10 September 1985 the Tribunal decided that parts of the document referred to were not exempt from disclosure under s.38 of the Freedom of Information Act 1982 by virtue of the provisions of s.16 of the Income Tax Assessment Act 1936. A copy of the document marked D79 as made available to the Tribunal is annexed to the Special Case in a sealed envelope. I have not inspected this document.
It should be mentioned that the same question as is posed by the Special Case came before us on appeal from the Tribunal but we held that in the circumstances of this case and in the light of Director General of Social Services v Chaney (1980) 31 A.L.R. 571 we lacked jurisdiction to deal with the matter. In the result we referred the matter back to the Tribunal which then proceeded to state the Special Case which is before us now. The parties had already advanced their arguments on the hearing of the appeal and did not wish to be heard further. We are taking the arguments submitted on the appeal as arguments upon the same question submitted on the Special Case. The Bench is constituted in the same way as for the appeal.
I should also mention that concurrently with the lodging of the appeal an application under the Administrative Decisions (Judicial Review) Act 1977 was lodged. At the request of the parties when the appeal came on for hearing, this matter was stood down until after the appeal had been dealt with. It is still stood over.
I turn now to the question raised by the Special Case.
Section 38 of the Freedom of Information Act 1982 is as follows:
"38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."
Section 16 of the Income Tax Assessment Act 1932 is as follows:
"16.(1) In this section, unless the contrary intention appears -
'officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax; ...
(1A) For the purposes of the definition of 'officer' in sub-section (1), a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of 'officer' in sub-section (1)".
Section 38 deals with information in documents. It exempts documents from the operation of the Freedom of Information Act if there is in force an enactment
(i) applying specifically to information of a kind contained in the document, and
(ii) prohibiting persons referred to in the enactment from disclosing information of that kind.
The exemption applies whether the prohibition is absolute or is subject to exceptions or qualifications.
In the case of s.16 of the Income Tax Assessment Act it is clear that there is a prohibition from disclosing certain information. It is also clear that this prohibition is subject to a qualification, namely that disclosure is permitted in the performance of any duty as an officer. In dealing with this exception or qualification Beaumont J., who presided over the Administrative Appeals Tribunal, in his Reasons for Decision took the view that the scope of the exception as discussed by Kitto J. in Mobil Oil Australia Pty. Limited v. Commissioner of Taxation (1963) 113 CLR 475 at pp 504-5 was so wide as to have the effect of destroying the prohibition. The other members of the Tribunal sitting with him concurred in this view. In the result, therefore, the Tribunal decided that the document D79 was not exempt from disclosure under the Freedom of Information Act.
I find myself unable to agree with this analysis of the effect of the exception or qualification. As expressly stated in s.38 of the Freedom of Information Act, a document is entitled to exemption under s.38 if there is a prohibition from disclosure within the terms of that section "whether the prohibition is absolute or is subject to exceptions or qualifications". While I do not take the view that it would be impossible to find the qualification or exception so wide that it destroyed a prohibition, it does not appear to me that the particular exception or qualification in s.16 of the Income Tax Assessment Act is of this character.
Commonwealth statutes containing prohibitions or restrictions on disclosure of information are numerous and they display a wide variety of forms of prohibition. Apparently it was not found convenient to specify in the Freedom of Information Act the Acts containing provisions for prohibition which the legislature intended to be exempt. This could have been done in a schedule. The form of words used in s.38 was doubtless selected in an attempt to obtain a formula from which those statutes which were to be exempt could be readily identified. However, there is difficulty in applying the formula in practice. It seems reasonably clear that if the prohibiting section prevents the disclosure of any information obtained by a public servant in the course of his duty as, for example, in s.70 of the Crimes Act 1914, the formula does not reach this situation because it is not an enactment "applying specifically to information of a kind contained in the document". This was in effect decided in News Corporation Limited v. National Companies and Securities Commission (1984) 52 ALR 277 and Kavvadias v. Commonwealth Ombudsman (1984) 52 ALR 728. As was stated in the Kavvadias Case at p 733:
"It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers."
At the other end of the scale would be a prohibition against a public servant disclosing, for example, maps showing the position of defence installations.
However, there are enactments, and s.16 of the Income Tax Assessment Act is one of them, which are much closer to the borderline. The question is whether the reference to the information in the section is sufficiently specific. In the case of s.16 the prohibition is against an officer making a record of or divulging or communicating to any person any information respecting the affairs of another person acquired by him by being disclosed to him or obtained by him under the income tax legislation. In s.16(2) where this prohibition occurs, the reference to affairs of "another person" would appear to refer to a person other than the person enquiring or seeking the information. There is some ambiguity in this because in s.16(1) the reference to an officer acquiring information respecting the affairs of any "other person" gramatically appears to refer to a person other than the officer. But whether the section refers to information relating to persons other than the officer or other than the enquirer or other than both in different portions of the text (a zeugma), this does not appear to affect the conclusion to be drawn as to whether the information is referred to sufficiently specifically. The class of persons to whom the officer is prevented from disclosing the information is virtually the whole world with the exception of either one or two persons. The more important question is whether the information is sufficiently specifically described by the words "information respecting the affairs of any other person disclosed or obtained under the provisions of the income tax legislation". This is an extremely wide field of information since almost any information may be obtained under the provisions of the income tax legislation and most of it will relate to the affairs of a person which presumably would include a company. However, as was pointed out by counsel for the Commissioner, there is information which would not answer this description, for example, a manual prepared by the Commissioner, perhaps statistics obtained which do not disclose individual persons or companies from whose figures the statistics are compiled. Other examples may be formulated.
In my opinion, the question whether s.16 applies specifically to information of a kind within the meaning of s.38 is one of some difficulty. However, I have come to the conclusion that the description of the information is sufficiently specific to attract the operation of s.38.
From the policy point of view it may be noted that an enactment such as s.70 of the Crimes Act prohibiting the disclosure of information obtained in the course of the duties of a public servant treats the nature or kind of information disclosed as virtually irrelevant. It is the office occupied by the person and the character in which he obtained the information which imposes the obligation of secrecy upon him in the interests of orderly administration and discipline of the service. In contrast, the information relating to the affairs of persons obtained or disclosed under the income tax legislation is a highly sensitive area. The prohibition is laid down not because of the positions of the officers as public servants dealing with this matter but because of the sensitivity of the particular information which perhaps may, in a very general way, be referred to as tax related information.
In the result I would answer the question submitted in the Special Case "yes".
JUDGE2
This is a special case referred by the Administrative Appeals Tribunal which is dealing by way of review with a number of applications made to the Australian Taxation Office under the Freedom of Information Act 1982. The Commissioner of Taxation declined access to a large number of documents on a number of grounds expressed in the Act and his refusal on one of those grounds, in relation to one document, has been made the subject of the special case.
There was earlier an attempted appeal to this court from a decision of the Tribunal on the question now raised, but we held that we had no jurisdiction to hear an appeal at that stage (Full Court, 20 March 1986). We intimated at the time that the question might by other means be brought back before the Court, which could be constituted by the same judges. This has now happened, and the parties have not presented any argument additional to that presented earlier.
I see no difficulty arising from the fact that the Tribunal has given a ruling on the matter. Section 45 of the Administrative Appeals Tribunal Act 1975 is ample to embrace that situation.
The Tribunal, which was presided over by a Judge of this Court (Beaumont J.) sitting as Presidential member held that the claim for exemption made by the Commissioner was not sound so far as it relied upon the ground in question and this ruling is the subject of the stated case. The relevant legislation has been set out in the judgments of Bowen C.J. and Jackson J.
It is submitted on behalf of the Commissioner of Taxation that s.16(2) of the Income Tax Assessment Act 1936 satisfies the requirements of s.38 of the Freedom of Information Act 1982 so that documents to which the former enactment applies are exempt documents within the meaning of the latter.
The question stated is as follows:
"Whether the document marked in the proceedings as D79 is an exempt document pursuant to the provisions of section 38 of the Freedom of Information Act 1982 on the ground that section 16 of the Income Tax Assessment Act 1936 is an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind."
The question thus raised is in short compass and does not bear much elaboration. Unlike my colleagues, I am of the view that it should be answered in the negative. I shall attempt briefly to explain why.
The Freedom of Information Act deals with information, but does so by reference to documents in which it is contained (see s.3(1)(b)). Hence s.38 (like other exemption provisions) refers to documents, and not simply to information (see definition of "document" in s.4(1). Section 38 is cast in general terms, but it refers to "an enactment applying specifically to information of a kind contained in the document". One looks for an enactment and asks whether it applies specifically to information of a kind contained in the questioned document.
Section 16(2) of the Income Tax Assessment Act does not refer to documents, or to information in a document, or kind of document. It is a prohibition against divulging information which is actually or potentially of a very extensive nature, and is cast, understandably, in very general or non-specific terms. It is directed to "officers" as defined in s.16(1). The officer is required not to make a record of, or divulge or communicate, information respecting the affairs of another person except in the performance of any duty as an officer. The term "officer" is defined widely in s.16(1) as follows:
"`officer' means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax"
If the reference in s.16(2) was to information in certain documents or documents of a certain kind the application of s.38 may be clearer. It may nevertheless be taken that the phrase "contained in the document" in s.38 does not mean that the information must have originally been in a document or have been required to be in a document, but is merely descriptive of a current situation and embraces the case where the presence of the information in the document is, as it were, coincidental. It is still necessary to be able to find a specific reference and to be able to classify the information as being "of a kind". As to "kind" it is a question how broad the classification can be. Does it, for example, include any information received by an officer, in relation to which there is a prohibition against disclosure? It would seem not (see Kavvadias v. Commonwealth Ombudsman (1984) 1 FCR 80). The section seems plainly enough to be drafted so as not to apply to all documents which contain information which officers are required not to divulge, under one of the many provisions affecting Commonwealth officers. Were it otherwise, the purpose of the legislation would be defeated.
The use of the term "specifically" points to the need for a precise link between the enactment and the kind of information. It emphasises at the same time that "kind" relates to information capable of a reasonably specific description.
The Full Court of this Court has considered the meaning and application of s.38 in two cases. The News Corporation Ltd. v. National Companies and Securities Commission (1984) 1 FCR 64 and Kavvadias v. Commonwealth Ombudsman (1984) 1 FCR 80. In the latter, in a joint judgment, the Court said with reference to the Ombudsman Act 1976 and in particular s.35 thereof (p.85): "It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself". The Court cited the following passage from the joint judgment of Bowen CJ. and Fisher J. in the earlier case:
"We are firmly of the opinion that s.38 expressly and intentionally directs attention to the nature of the information contained in the document and not to the capacity of the person who has received the information."
It seems to me that s.16(2) is of general rather than specific application. It identifies the information in an entirely general way through the capacity of the person who received it, notwithstanding the inevitable reference to income tax law. This may be taken as substantially the same as "course of duty". I do not see any significant distinction in this regard between the present case, and the two earlier ones, where the respective documents were held not to be exempt.
In my view the meaning of s.16(2) is not affected by the reference in the definition of "officer" in s.16(1) to "any other person". The definition is dealing with the scope of an officer's function, from which he can be identified. What s.16(2) prohibits is the disclosure to others of the affairs of one. This deals with the generality, heterogeneous and multifarious, and not with kind, and the reference to it, as contained in any document, can hardly be regarded as specific.
I am therefore of the opinion that the question submitted should be answered, NO.
JUDGE3
The Administrative Appeals Tribunal has before it an application for review of a decision of the Commissioner of Taxation refusing a request pursuant to the Freedom of Information Act 1982 by Swiss Aluminium Australia Limited for access to certain documents including a document marked in the proceedings before the Tribunal as Document D79.
S.11(a) of the Freedom of Information Act provides that subject to that Act any person has a legally enforceable right to obtain access in accordance with the Act to a document of an "agency", other than an exempt document. The Commissioner of Taxation is an "agency" for the purposes of s.11(a).
The Freedom of Information Act contains a number of provisions which make documents "exempt" documents for the purposes of that Act. One such provision is s.38, which provides that:-
"38. A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."
S.38 requires, of course, that for a document to be an "exempt document" in accordance with its provisions, the enactment to which it refers must be one which applies "specifically to information of a kind contained in the document" and prohibits persons referred to in the enactment "from disclosing information of that kind". The "enactment" which the Commissioner contends satisfies that requirement is s.16(2) of the Income Tax Assessment Act 1936.
The Tribunal has determined that s.16(2) is not an enactment satisfying the requirements of s.38 and that in consequence Document D79 is not an "exempt document". Acting under s.45 of the Administrative Appeals Tribunal Act 1975, however, the Tribunal has referred to the Court the following question of law:-
"Whether the document marked in the proceedings as D79 is an exempt document pursuant to the provisions of section 38 of the Freedom of Information Act 1982 on the ground that section 16 of the Income Tax Assessment Act 1936 is an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind."
S.16 of the Income Tax Assessment Act provides relevantly that:-
"(1) In this section, unless the contrary intention appears -
"officer" means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax; ....
(1A) For the purposes of the definition of "officer" in sub-section (1), a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer, and either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of 'officer' in sub-section (1)."
It is clear that s.16(2) satisfies some at least of the requirements of s.38. Firstly s.16(2) is an "enactment". Secondly, it prohibits the persons referred to in the enactment (namely "officers" as defined in ss.16(1) and 16(1A), and former "officers" - all of whom I shall describe hereafter as "officers") from disclosing information. It is true that that prohibition is subject to "exceptions or qualifications" in that:
(a) the prohibition is expressed to be "subject to this section"; and
(b) conduct which would otherwise constitute a breach of s.16(2) will not have that quality if it occurs "in the performance of any duty as an officer";
but s.38 contemplates expressly that a prohibition may be subject to exceptions or qualifications but yet be an enactment to which s.38 applies.
I turn then to what is the critical question, namely whether s.16(2) is a provision "applying specifically to information of a kind contained in the document".
The Court has given consideration to the meaning of this part of s.38 on two occasions, the first of which is News Corporation Ltd v. National Companies and Securities Commission (1984) 1 FCR 64.
In that case the Court observed that because the language of s.38 required that attention be directed to the question whether the enactment applied specifically to information of the relevant kind, an enactment would not satisfy s.38 if it did no more than prohibit disclosure of material received by particular persons in a particular capacity. As Bowen C.J. and Fisher J. said (at 70):-
"In our view s.38 should be construed as applying when enactments specify the nature or quality of information which is not to be disclosed; it has no application if the enactment identifies the information merely by reference to the capacity of the person who has received or is in possession of the information."
The second case, Kavvadias v. Commonwealth Ombudsman (1984) 1 FCR 80, shows again that s.38 requires that an enactment to which it refers identify the information which is not to be disclosed by reference to its nature or quality. There the Court (at 85) said of a prohibition on the disclosure of information which had been obtained or disclosed in pursuance of the enactment in which the prohibition was found:
"Such a prohibition would say nothing directly as to the kind of information in question, which, depending upon the role of the officers, may be of a very wide, almost limitless nature.
It seems to us that s.38 requires that there be a more direct and explicit reference to the nature of the information itself. Information is the commodity being dealt with in the Act, not the discipline or integrity of officers."
The effect of s.38 in the light of those decisions is then that those parts of s.16(2) which:-
(a) limit the prohibition to information acquired by the "officer" in his capacity as such; and
(b) limit the prohibition to information disclosed or obtained under the provisions of a law referred to in s.16(1);
do not of themselves mean that, in terms of s.38, s.16(2) applies specifically to information of a relevant "kind". That is not to say, of course, that such provisions may not have some effect in limiting overall the information the subject of the prohibition.
In addition to the two limitations to which I have referred, however, s.16(2) contains another limitation on the ambit of the prohibition, namely that the information must be information "respecting the affairs of another person" and the question is whether that limitation provides, in terms of the cases to which I have referred, a sufficient "reference to the information itself" to satisfy the requirements of s.38.
In considering that question an initial question of construction arises, namely whether the expression "another person" in s.16(2) is intended to mean all persons other than the officer, or is intended to mean all persons other than the officer and the person (if any) to whom the information is communicated.
Read by themselves, the terms of s.16(2) prohibit an officer from:-
(a) making a record of any information respecting the affairs of another person; or
(b) divulging to any person any information respecting the affairs of another person; or
(c) communicating to any person any information respecting the affairs of another person.
The expression "another person" in s.16(2) would thus apply to the affairs of all persons other than the officer insofar as it constituted a prohibition upon making records, and would apply to the affairs of all persons other than the officer and the person to whom the information was divulged or communicated in the case of the other prohibitions in s.16(2). It is true to say that s.16(1) in referring to information "respecting the affairs of any other person" is clearly enough referring to any person other than the officer but there is no reason why a similar approach should necessarily apply to all aspects of the prohibitions contained in s.16(2). The wider approach applies without difficulty to the prohibition against making a record of information, but the addition of the words "to any person" after the words "divulge or communicate" suggests that a narrower meaning should be regarded as applying in those instances.
The information contained in Document D79 is information respecting the affairs of persons other than Swiss Aluminium. In one sense it may also be regarded as information respecting the affairs of Swiss Aluminium and if it bore only that aspect divulging or communicating that information to Swiss Aluminium would not be subject to the relevant parts of the prohibition of s.16(2) at all. In my view, however, if information is information "respecting the affairs of another person" in terms of s.16(2), it does not cease to bear that character because it also bears the character of information respecting the affairs of the person to whom it might be communicated. In other words the prohibition of s.16(2) applies in such a case.
Returning then to the critical question, it is true to say that s.16(2) applies to a broad category of information, i.e. information relating to the affairs of any person other than the officer (and in the case of divulging or communicating, the person to whom the information is divulged or communicated). Nonetheless I think that s.16(2) does apply "specifically" to that information, and that that information is information of a "kind" in terms of s.38 for, broad though the "kind" may be, the nature of the information is defined and the application to it of s.16(2) is specific.
In the Tribunal, a different approach was taken by the Presidential Member, with whose decision the other Members agreed. The Presidential Member's view was that the exceptions built into s.16(2) were capable of a very wide operation, and that in consequence the "generality of the exception is such as to deprive the prohibition, as a whole, of the specific character called for by the first limb of s.38".
I do not agree with this approach to s.16(2). I accept, of course, as a general proposition that when a general provision is followed by specific exceptions and qualifications, the terms of the exceptions and qualifications may cast light upon the ambit of the general provision. But in the present case all that appears when one construes the various parts of s.16(2) together is that s.16(2) is a provision applying to information covering a relatively wide field, and that the prohibition is subject to some relatively wide qualifications or exceptions, a circumstance the possible existence of which is recognized by s.38 itself.
In the circumstances my view is that Document D79 is an exempt document and that the question of law referred to the Court by the Tribunal should be answered "Yes".
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